Citation: Regina v Lilley [2000] NSWCCA 57; (2000) 111 A Crim R 468
Court: NSW Court of Criminal Appeal
Date: 10 March 2000
Judge(s): Fitzgerald JA, Barr J, Smart AJ
Background
The respondent, Ronald Lilley, pleaded guilty in the District Court to three offences: knowingly taking part in the supply of a commercial quantity of heroin (arising from events in June 1996), supply of a prohibited drug in July 1998, and attempting to pervert the course of justice. The heroin supply charge arose from an undercover operation in which Lilley provided a sample of heroin and participated in negotiations for the sale of one pound of heroin for $120,000 at a Sydney hotel. The perverting justice and second supply offences occurred while Lilley was on bail.
Judge Moore in the District Court sentenced Lilley to 2 years and 6 months periodic detention for the commercial quantity supply offence, and deferred sentence for the remaining two offences on condition that Lilley enter a $1,000 recognisance to be of good behaviour for three years and accept supervision by the Probation and Parole Service. The sentencing judge himself described the outcome as "extremely lenient."
The Director of Public Prosecutions appealed on the ground that the sentences were inadequate.
Legal Issues
- Whether the sentences imposed by the District Court were manifestly inadequate having regard to the objective gravity of the offences.
- Whether the sentencing judge's characterisation of the offences and personal circumstances as "exceptional and rare" was supported by the evidence.
- Whether the parity finding between Lilley's case and a co-offender's case was properly reasoned.
- Whether the Court of Criminal Appeal should make a recommendation regarding the respondent's costs from the Suitors' Fund.
Decision
The Court of Criminal Appeal unanimously allowed the Crown appeal, finding that the sentencing judge had erred badly. Fitzgerald JA observed that the sentencing judge's description of the offences as "exceptional and rare" was inaccurate, and that the finding of parity with the co-offender Hatch was unsupportable. The sentencing judge also failed to make adequate findings about whether Lilley was unable or unwilling, as opposed to merely prevented by arrest, from completing the commercial supply.
The Court found that several mitigating factors relied upon by the sentencing judge carried minimal weight in the circumstances. Matters such as support from a marital partner, employment references, poor health, and difficulty tolerating prison were of limited significance for an offender with a long history of criminal behaviour, previous drug offences, previous imprisonment, and an anti-social personality disorder. The Court noted an internal inconsistency between the employer's evidence of reliability and the sentencing judge's own characterisation of Lilley as "a true addict who does not and possibly cannot make rational decisions" about heroin.
Fitzgerald JA acknowledged the difficulty presented by the prosecution appeal, noting that Lilley had been serving periodic detention, appeared to be complying with supervision requirements, and had real prospects of rehabilitation that a full-time custodial sentence might prejudice. Nevertheless, the Court held the original sentences were untenable and re-sentenced accordingly. The Court declined to make a recommendation that Lilley's costs be met from the Suitors' Fund, finding no statutory warrant for such an order in the context of a Crown sentence appeal, though the refusal was expressed without prejudice to any direct application by Lilley to the Director-General.
Orders Made
- Appeal allowed; original sentences quashed.
- In substitution, the respondent was sentenced as follows:
- Attempt to pervert the course of justice: minimum term of 1 year imprisonment commencing 22 July 1998, plus additional term of 1 year commencing 21 July 1999.
- Supply prohibited drug (July 1998): minimum term of 1 year imprisonment commencing 22 July 1998, plus additional term of 1 year commencing 22 July 1999.
- Knowingly taking part in the supply of a commercial quantity of heroin (13 June 1996): minimum term of 2 years imprisonment commencing 22 July 1999 and ending 21 July 2001, plus additional term of 2 years commencing 22 July 2001.
- The Court refused to make the requested recommendation regarding costs from the Suitors' Fund, without prejudice to the respondent's application to the Director-General.
Key Takeaways
- Sentences must reflect the objective gravity of the offences, and a sentencing judge's own acknowledgment of "extreme leniency" will weigh heavily in favour of a successful Crown appeal.
- Personal mitigating circumstances, including health, age, employment support, and rehabilitation prospects, carry reduced weight when an offender has committed serious drug supply offences with a lengthy prior criminal history involving similar conduct.
- Parity findings between co-offenders must be properly reasoned and supported by the evidence; an unsupported parity finding constitutes error.
- In allowing the Crown appeal, the Court of Criminal Appeal acknowledged the difficulty of re-sentencing after an offender has partially served a non-custodial regime and demonstrated compliance, but held that this consideration could not rescue sentences that were fundamentally inconsistent with the gravity of the offences.
- The Suitors' Fund Act 1951 and the Costs in Criminal Cases Act 1967 do not provide statutory authority for the Court of Criminal Appeal to recommend costs in favour of a respondent on a Crown sentence appeal; the Court noted that this gap in coverage merits consideration by law reformers.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 3 (definition of "supply")
- Suitors' Fund Act 1951 (NSW)
- Costs in Criminal Cases Act 1967 (NSW), ss 2(b), 3, 6C
Cases:
- No specific cases were cited in the portions of the judgment provided.